5/09/2008 @ 6:00AM

Managing Against Illegal Content

Indeed, the recent announcement made by
Comcast
and BitTorrent that they will work together to find a market-based solution to the network management challenges posed by the huge bandwidth demands of peer-to-peer file sharing is positive on two fronts.

First, as FCC Commissioner Robert McDowell pointed out in his response to the announcement, it clearly demonstrates that the market is truly the best vehicle for finding solutions to problems in a rapidly changing digital environment.

Second, the announcement–let’s hope–further demonstrates that an intrusive government “network neutrality” regime is not necessary, and this provides a more promising future for protecting intellectual property online. Wait a minute, how did we get onto intellectual property (IP)?

We can start with the encouraging statements from FCC Chairman Kevin Martin and Commissioner Deborah Taylor Tate who both noted the importance of protecting intellectual property rights in their responses to the Comcast-BitTorrent announcement.

This is important because, in the debate over net neutrality, the issue of who gets to do what with the network they built has been the main point of contention, while stopping the flow of illegal content online (including pirated content) has played a somewhat secondary role. But, it is just as big a deal.

Here’s why: A government-mandated net neutrality regime (instead of the sensible FCC Policy Guidelines laid out in 2005) actually puts at risk two forms of property rights. It would obviously prohibit the actual owners of a network from exercising effective management of their physical property, but it could also limit their ability to put in place solutions or approaches that can reduce the theft of equally valuable intellectual property flowing over their networks. And finding effective approaches to protecting IP online will have a huge positive impact on some of the most dynamic and innovative industries in our economy. A study by the Institute for Policy Innovation found that music piracy alone costs the U.S. economy $12.5 billion a year.

If Internet service providers are unable to manage their networks to ensure they can deliver a good service to all of their customers, they likewise won’t be able to put in place measures to stop the flow of illegal content. This might violate the pursuit of “neutrality” after all because some forms of content–even though it is illegal–would be targeted and prohibited from moving freely. This would tie the hands of intellectual property owners and ISPs who should actually be encouraged to work together to try to put a dent in rampant online piracy. It could also tie the hands of those trying to rid the Internet of dangerous and illegal content such as child pornography.

Most who have observed the debate over the protection of intellectual property online know that ISPs and the content industry don’t always see eye-to-eye. However, creative new products and new technological approaches have shown that progress can be made if we prioritize IP protection, and the market is allowed to work.

Any move away from a government-imposed net neutrality regime is a good thing and will allow the market to motivate companies to work together to find effective new solutions to protect IP online. The Comcast-BitTorrent announcement represents such a move.

The FCC’s language on the need to protect intellectual property is equally important and should factor in significantly as all companies work to find effective ways to manage network traffic.

Chris Israel, senior research fellow with the Institute for Policy Innovation, is a former U.S. Coordinator for International Intellectual Property Enforcement.